Abstract
This paper develops a normative framework for both conceptualizing and assessing various institutional possibilities for democratic modes of constitutional change, with special attention to the recent ferment of constitutional experimentation. The paper’s basic methodological orientation is interdisciplinary, combining research in comparative constitutionalism, political science and normative political philosophy. In particular, it employs a form of normative reconstruction: attempting to glean out of recent institutional innovations the deep political ideals such institutions embody or attempt to realize. Starting from the assumption that contemporary constitutional democracies are attempting to realize the broader ideals of deliberative democratic constitution (ideals outlined briefly in the first section), the paper proposes an evaluative framework, comprised of six criteria, for assessing various mechanisms of constitutional change. It argues that democratic forms of constitutional change embody six distinct ideals—operationalizability, structural independence, democratic co-authorship, political equality, inclusive sensitivity, and reasons-responsiveness—and that these ideals can be used to gauge the normative worth of different mechanisms for carrying out such change. The framework is developed with reference to recent constitutional developments (e.g., in Venezuela, South Africa, Colombia, Bolivia, and Iceland) highlighting distinct criteria and showing how they appear to capture the general direction of institutional innovation. The paper conjectures that the set of six criteria yield the best normative reconstruction of the crucial ideals embodied in the constitutional change mechanisms of contemporary constitutional democracies, and so, ought to be used for purposes of evaluating institutional design proposals.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
I have developed this conception elsewhere, leaning heavily but not exclusively on Jürgen Habermas’s political philosophy (Zurn 2007).
- 2.
I share the methodological antipathy of both Sen and the critical theory tradition to grand ideal theory developed first out of abstract intuitions and thought experiments and only secondarily applied to an ostensibly fallen reality (Habermas 1996; Honneth 2014; Sen 2009). In the end, political theory must attempt to put the various tensions between facts and norms to productive use.
- 3.
Here I follow Waldron’s convincing articulation of the circumstances of politics (Waldron 1999, 100–103).
- 4.
This conception thus rejects hard, unchangeable entrenchments as evident, for instance, in the German Basic Law’s Article 79, section 3 with respect to fundamental individual rights guaranteed in Articles 1 through 20. See further Sect. 9.3.4 below.
- 5.
I have argued elsewhere that in constitutional systems where there are institutions specifically dedicated to constitutional review—e.g., normal appellate courts or constitutional court s —it is inevitable that constitutional modification will occur through the exercise of constitutional review (Zurn 2007). See further Sect. 9.3.5 below. The scope for constitutional modification through normal political processes is even greater, perhaps, through the interactions of the other centers of power in and outside of government. Consider, for example, the many dynamics through which civilian control of militaries waxes and wanes under different political conditions in different constitutional democracies.
- 6.
- 7.
This inclusive, participatory position is in some real contrast with more ‘expertocratic’ strains of some deliberative democratic theory and some republican political theory, strains which assume that high quality deliberation is best carried out by specialists and experts. Here I side with the upshot of Aristotle’s argument for wide deliberation in the Politics: “the many, of whom each individual is but an ordinary person, when they meet together may very likely be better than the few good, if regarded not individually but collectively, just as a feast to which many contribute is better than a dinner provided out of a single purse. For each individual among the many has a share of virtue and prudence, and when they meet together, they become in a manner one man, who has many feet, and hands, and senses; that is a figure of their mind and disposition. Hence the many are better judges than a single man of music and poetry; for some understand one part, and some another, and among them they understand the whole” (Aristotle 1943, 1281b1–16).
- 8.
We could call this a ‘Rousseauian’ arrangement, but for one feature: Rousseau allows for enactment thresholds to be modified—somewhere between a bare majority and full consensual unanimity—according to the trade-offs needed between alacrity and the seriousness of the issue at stake (Rousseau 1997: Book IV, chapter 2). Even so, however, his arrangement is still anti-constitutional in this sense: no law is put out of reach of a current assembly. In fact, every assembly opens first with this question: “whether it please the Sovereign to retain the present form of Government?” (Rousseau 1997: 120, Book III, chapter 18).
- 9.
There is of course much more detail that ought to be added to this story in order to understand it fully. In particular, one would need to account for specific social, economic and cultural conditions, as well as pre-Chávez political history, in Venezuela during this period. Legislation passed in 2004 is also important, which allowed for the destruction of judicial independence through a court packing scheme. And the story would need to mention the failure of a similar attempt at constitutional amendment in 2007 in the face of popular protests. Nevertheless, I believe the rudiments of the story for my purposes—overly easy amendment procedures leading to the collapse of any structural independence between ordinary and constitutional legislation mechanisms—would be unchanged in the main by these and other necessary details.
- 10.
It should be noted that they also find that constitutions that are too easy to amend suffer diminished longevity. There is then, as they put it, a kind of Goldilocks character to constitutional obduracy, a “just right” balance between two extremes, at least insofar as the long life of constitutions is concerned.
- 11.
This is a hypothesis that needs further empirical work to support, especially to see whether cases like Brazil’s 1988 constitutional entrenchment of certain elements like federalism, the franchise and individual rights are outliers, as I suppose, or more common than that.
- 12.
For more detail, see (Zurn 2007, 256–264).
- 13.
In terms of debates in the United States, the proper democratic complaint against judicial review is Learned Hand’s, not Alexander Bickel ’s.
- 14.
There are also serious normative consequences of employing courts to carry out constitutional change for two of the other six criteria beyond political equality : reasons -responsiveness and inclusive sensitivity. Courts are usually very responsive to reasons in comparison with other political institutions—after all, they often engage in structured reason-giving for their decisions—but they are not particularly responsive to the right kinds of reasons. Especially when constitutional interpretation is carried out concretely—elaborating law through determinate cases and controversies of individual litigants—and where strong traditions of doctrinal development and stare decisis have arisen, the reason-giving of courts is excessively juristic: focused upon legalistic minutiae incident to the particularities of the case presentation and the finer points of judicially-crafted doctrinal rules, principles and presumptions—rather than on the broad constitutional policy and principle issues at stake in changing fundamental law. Secondly, court-based constitutional change is quite likely to ignore the interests and opinions of wide swaths of the population, and so will perform poorly in the light of the criterion of inclusive sensitivity. The issue here is the available pool of reasons and sensitivity to a diversity of problems felt throughout a society and especially by individuals and groups whose issues and concerns are not felt, noticed nor well represented by political and social elites, nor by those who have the money and political interests to bring strategic lawsuits to change constitutional law. Consider, for example, the ways in which case presentations often systematically ignore the interests of those affected by policy change simply because those interests are not represented by the incident litigants. A recent striking example in U.S. constitutional jurisprudence: a case about health insurance provisions to cover the costs of contraception where the litigants were employers and the government. Hence, before the court, nobody represented those who would actually have to pay or not pay for the contraception, and endure the consequences (Burwell v. Hobby Lobby, 573 U.S. __ (2014))! This insensitivity is standard fare for courts: in part because courts simply do not have the information collection and processing capabilities to gauge the likely effects of various policy regimes, and in part because of basic structural and procedural requirements for the fair application of law to individual cases. (It may be that the recent Latin American development of Amparo proceedings is significantly decreasing the informational deficit of constitutional court s ). The general unsuitability of judicial reason-giving and narrow informational basis for purposes of constitutional law making are treated in a lengthy case study of United States jurisprudence at (Zurn 2007: 163–220). My position is developed in reaction against attempts by deliberative democratic theorists of various stripes—Eisgruber, Michelman, and Rawls—to paint judicial review as democratic precisely because it is ‘deliberative’.
- 15.
Some constitutions give constitutional court s ex ante review powers over amendment bills: either the power to pass on the constitutionality of amendments after they have been proposed but before they have been ratified by democratic bodies—as for instance in Colombia’s 1991 constitution and Sri Lanka’s 1978 constitution—or to pass on the constitutionality of amendment bills before promulgation—as in Cambodia’s 1993 constitution. Interesting questions arise here of the location of the constituent power , especially when, as in the Colombian case, a court uses a limited procedural jurisdiction over amendments to have more expansive review of the substantive content of amendment proposals (Bernal-Pulido 2013; Colón-Ríos 2011).
- 16.
Witness recent proposals—themselves the latest in a long line of such proposals—in the United Kingdom to fundamentally reform the House of Lords, the second legislative chamber of Parliament, by reducing its size, making it fully elected, and making its basic principle of representation geographic. These clearly count as fundamental constitutional change s. Formally, at least, they could be pushed through Parliament given sufficient party strength, and using the same procedures as those for ordinary lawmaking. But all involved acknowledge that using those simple procedures alone would be an ‘unconstitutional’ violation of conventional understandings of the gravity of constitutional change. Thus the most recent reform promoters (notably Labour leader Miliband) propose to hold a constitutional convention to process the proposals.
- 17.
- 18.
Empirical research also indicates the importance of broad inclusion. For instance, inclusion—“the involvement of important groups in society in the design and maintenance of the constitution”—is one of only three design features of constitutions that groundbreaking scholarship identifies as strongly correlated with constitutional longevity (Elkins et al. 2009, 208). The other two are the right balance of flexibility and obduracy (noted above in Sect. 9.3.4) and the right balance between constitutional generality and specificity (a factor orthogonal to the concerns of this paper).
- 19.
Colombia’s 1991 constitution was itself written by a constituent assembly, albeit a procedurally irregular one in the sense that the possibility for such an assembly was not cognized in the 1886 constitution previously in force. Nevertheless, after a popular ballot initiative passed in 1990 calling for a constituent assembly to draft a new constitution, such an assembly was held, and a new constitution was drafted and enacted.
- 20.
Again, these recitations of the cases are overly simplified and purged of potentially relevant detail; it is surely an open question whether I have simplified away from factors of crucial importance.
- 21.
I have simplified the story by leaving out the unfortunate intervention of Iceland’s supreme court in 2011, attempting to overturn the election of the Constitutional Council’s members on questionable grounds. This court ruling was effectively rejected by the legislature by simply appointing the officials actually elected to the Council. There is some legitimate concern about how inclusive the membership of the Council turned out to be. Most of the membership was drawn from established political elites; Reykjavík was over-represented whereas other regions under-represented; and, working and lower classes were under-represented (Landemore 2014).
- 22.
It seems that many of the institutional innovations were directly modeled on the deliberative democratic opinion polling and decisional forums designed by James Fishkin and allied democratic theorists (Fishkin 2009), including proposals for a national deliberation day (Ackerman and Fishkin 2004), and prominently employing sortition as an alternative mechanism for ensuring broad representation and political equality (at least in the earlier consultative National Assembly)—even if not all procedures met all of Fishkin’s preferred criteria (Landemore 2014, 18–20).
- 23.
Apparently influenced by the openness of web-based tools to citizen input, the Irish Constitutional Convention (2013–2014), charged with recommending constitutional change s to government, is another remarkable recent example of combining inclusive sensitivity with reasons -responsiveness .
References
Ackerman, Bruce, and James S. Fishkin. 2004. Deliberation day. New Haven: Yale University Press.
Aristotle. 1943. Politics. Trans. Benjamin Jowett. New York: Random House.
Arrow, Kenneth J. 1963. Social choice and individual values, 2nd ed. New Haven: Yale University Press.
Bergsson, Baldvin Thor, and Paul Blokker. 2014. The constitutional experiment in Iceland. In Verfassunggebung in Konsolidierten Demokratien: Neubeginn oder Verfall eines politischen Systems? ed. Ellen Bos and Kálmán Pócza, 154–174. Baden-Baden: Nomos Verlagsgesellschaft.
Bernal-Pulido, Carlos. 2013. Unconstitutional constitutional amendments in the case study of Colombia: An analysis of the justification and meaning of the constitutional replacement doctrine. International Journal of Constitutional Law 11(2): 339–357.
Closa, Carlos. 2012. Constitutional rigidity and procedures for ratifying constitutional reforms in EU member states. In Changing federal constitutions: Lessons from international comparison, ed. Arthur Benz and Felix Knüpling, 281–310. Toronto: Barbara Budrich Publishers.
Colón-Ríos, Joel. 2011. Carl Schmitt and constituent power in Latin American courts: The cases of Venezuela and Colombia. Constellations 18(3): 365–388.
Dahl, Robert A. 1989. Democracy and its critics. New Haven: Yale University Press.
Dixon, Rosalind. 2011. Constitutional amendment rules: A comparative perspective. In Comparative constitutional law, ed. Tom Ginsburg and Rosalind Dixon, 96–111. Northampton: Edward Elgar.
Eisenstadt, Todd A., Carl A. LeVan, and Tofigh Maboudi. 2015. When talk trumps text: The democratizing effects of deliberation during constitution-making, 1974–2011. American Political Science Review 109(3): 592–612.
Elkins, Zachary, Tom Ginsburg, and James Melton. 2009. The endurance of national constitutions. New York: Cambridge University Press.
Ely, John Hart. 1980. Democracy and distrust: A theory of judicial review. Cambridge, MA: Harvard University Press.
Ferejohn, John. 1997. The politics of imperfection: The amendment of constitutions. Law and Social Inquiry 22(2): 501–530.
Fishkin, James S. 2009. When the people speak: Deliberative democracy and public consultation. New York: Oxford University Press.
Ginsburg, Tom. 2003. Judicial review in new democracies: Constitutional courts in Asian cases. New York: Cambridge University Press.
Habermas, Jürgen. 1996. Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. Trans. William Rehg. Cambridge, MA: The MIT Press.
Hirschl, Ran. 2006. The new constitutionalism and the judicialization of pure politics worldwide. Fordham Law Review 75(2): 721–754.
Honneth, Axel. 2014. Freedom’s Right: The Social Foundations of Democratic Life. Trans. Joseph Ganahal. Malden: Polity Press.
Landau, David. 2012. Constitution-making gone wrong. Alabama Law Review 64(5): 923–980.
Landemore, Hélène. 2014. Inclusive constitution-making: The Icelandic experiment. Journal of Political Philosophy. doi:10.1111/jopp.12032.
Lijphart, Arend. 1999. Patterns of democracy: Government forms and performance in thirty-six countries. New Haven: Yale University Press.
Lutz, Donald S. 1995. Toward a theory of constitutional amendment. In Responding to imperfection: The theory and practice of constitutional amendment, ed. Sanford Levinson, 237–274. Princeton: Princeton University Press.
Negretto, Gabriel L. 2012. Replacing and amending constitutions: The logic of constitutional change in Latin America. Law and Society Review 46(4): 759–779.
Rasch, Bjørn Erik, and Roger D. Congleton. 2006. Stability and constitutional amendment procedures. In Democratic constitutional design and public policy: Analysis and evidence, ed. Roger D. Congleton and Birgitta Swedenborg, 319–342. Cambridge, MA: The MIT Press.
Riker, William H. 1982. Liberalism against populism: A confrontation between the theory of democracy and the theory of social choice. Prospect Heights: Waveland Press.
Rousseau, Jean-Jacques. 1997. Of the social contract. In The Social Contract and Other Later Political Writings, ed. and trans. Victor Gourevitch, 39–152. New York: Cambridge University Press.
Schumpeter, Joseph A. 1943. Capitalism, socialism, and democracy. London: George Allen & Unwin.
Sen, Amartya. 2009. The idea of justice. Cambridge, MA: Harvard University Press.
Shapiro, Martin, and Alec Stone Sweet. 2002. On law, politics, and judicialization. New York: Oxford University Press.
Stone Sweet, Alec. 2000. Governing with judges: Constitutional politics in Europe. New York: Oxford University Press.
Tate, C. Neal, and Tornjörn Vallinder. 1995. The global expansion of judicial power. New York: New York University Press.
Waldron, Jeremy. 1999. Law and disagreement. New York: Oxford University Press.
Zurn, Christopher F. 2007. Deliberative democracy and the institutions of judicial review. New York: Cambridge University Press.
Acknowledgments
I owe a special debt of gratitude to Tanya Stepasiuk for significant research assistance about existing mechanisms of constitutional change , and I thank Joel Colón Rios for discussions about South American mechanisms; errors about these processes are, of course, my own. Earlier drafts of this paper were presented at the 1st International Congress on Constitutional Law and Political Philosophy; On the Future of Constitutionalism : Perspectives for Democratizing Constitutional Law, organized by Thomas da Rosa de Bustamante at Federal University of Minas Gerais, Belo Horizonte, Brazil, and at XXVII World Congress of the International Association for the Philosophy of Law and Social Philosophy (IVR) in Washington, D.C. I am indebted to many participants of both conferences for insightful discussion, especially to very helpful comments made by Márcio Luís de Oliveira.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2016 Springer International Publishing Switzerland
About this chapter
Cite this chapter
Zurn, C.F. (2016). Democratic Constitutional Change: Assessing Institutional Possibilities. In: Bustamante, T., Gonçalves Fernandes, B. (eds) Democratizing Constitutional Law. Law and Philosophy Library, vol 113. Springer, Cham. https://doi.org/10.1007/978-3-319-28371-5_9
Download citation
DOI: https://doi.org/10.1007/978-3-319-28371-5_9
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-28369-2
Online ISBN: 978-3-319-28371-5
eBook Packages: Law and CriminologyLaw and Criminology (R0)